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Kathmandu Sunday February 24, 2002 Falgun 12, 2058.
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The Patenting of Life
By Jovan Ilic
Patents were first issued by 6th century
European Monarchs for the discovery and conquest of foreign lands on their behalf. When
Christopher Columbus set sail on his voyage of discovery, he carried a charter granting
him the potential right to own India. Of course he landed in the Americas by mistake but
it’s indigenous people were nonetheless colonised and have been called Indians ever
since. During the last twenty years patenting of Intellectual Property Rights (IPRs) has
been central to the continuously aggressive and expansionist foreign policies of
successive US governments. Vandana Shiva argues in Patents: myths & reality that it is
no more and no less than a repeat of the robbery seen during the colonial days of Columbus
and others.
She very briefly presents the case of the US
patents lobby as follows: patents are necessary for growth and high standards of living in
free markets which are realised through technology generation. IPRs help stimulate
investment and technology transfer from North to South, and allow inventors to recoup
research and development costs. She then critiques this argument, initially by quoting a
survey carried out in the US in 1984, which claimed that over 80% of the companies
contacted indicated that ‘blocking technical areas’ with no intention of working
the invention was a prime motive for patenting. It would appear that IPRs are used to
regulate competition rather than stimulate technology generation. Unfortunately she
doesn’t provide the reference for this survey so we are unable to analyse its
parameters, in particular the scale and scope of the companies contacted.
What with the all too brief presentation of
her ‘opponents’ case and this unsubstantiated study, we can begin to see how
this book regrettably is taken up with too much ‘preaching to the converted.’
Though the US patents lobby do not in truth have much of a case beyond economic
totalitarianism, Vandana Shiva does however, have a responsibility as a respected author
and world-renowned environmental leader and activist, to present the other side of the
argument as strongly as is possible. There is some debate here, but it mainly reads like a
barrage of impending doom. But let us look at some of the myths and realities of patents,
and the two main arguments that are presented against their current usage. The first
deconstructs ‘originality,’ and the second presents knowledge as a communal and
not individual enterprise.
In the US state of Pennsylvania on 28 March
1787, John Fitch was granted a patent, which gave him the sole and exclusive right and
privilege of constructing and using all kinds of boats in all the waterways of
Pennsylvania for fourteen years. Vandana Shiva debunks the myth that patents refer to
‘originality’ in the strictest sense, by for example, stating that as the steam
engine was invented and patented by James Watt in Scotland in 1772, the US patent of 1787
quite clearly does not apply to ‘originality’. Rather it is used as meaning the
introduction of new ideas to the ‘area’ covered by the licence. This patent
solely rewards John Fitch of Pennsylvania, and not James Watt. It does so strictly through
the market, where knowledge is seen as capital. Capital, which in this case rewards its
‘Pennsylvania’ owner with exclusive market control for fourteen years. The
second argument is that knowledge is a collective, cumulative enterprise based on
exchange. In this way Vandana Shiva can rightly argue for the acknowledgement of knowledge
systems of diverse cultures which the Pennsylvania and Columbus patents for example do not
do. As patents are granted for private property we have a direct conflict when knowledge
is viewed as a collective endeavour. The western patents lobby argue that people are
creative only if they can make profits (and presently, if those profits are guaranteed
through IPR protection). This however, negates the scientific creativity of the majority
of scientists in universities and public research systems, in addition to that of
traditional societies where free exchange of ideas is the very condition for creativity,
not its anti-thesis. This is the strongest claim of Shiva’s argument. Patenting has
less to do with promoting creative thinking and ‘originality’ and more to do
with market control, as can be witnessed in the progressive sponsoring of academic
research throughout the US.
It would have been very useful for there to
have been an analysis of the cultural differences that these arguments bring to light;
namely the dichotomy of the increasingly atomised nucleated urban north, and the
collective extended rural south. She also makes no mention of Public Private Sector
partnerships (PPPs) such as Medicines for Malaria Venture (MMV), the Global Alliance for
TB Drug Development (GATB), and International AIDS Vaccine Initiative (IAVI). Finally,
what is not well explained is the historical switch from granting patents for introducing
an idea into the area of the licensing agent, e.g. Pennsylvania, to issuing exclusive
international patents. This came about with the introduction of TRIPs (Trade Related
Aspects of Intellectual Property - that mandate minimum international 20-year patents) in
1995. By leaving this section to the end, the book almost reads from back to front.
However the thrust of the book is impossible to
ignore. It stands that the US enforced TRIPs legally protect those who effectively steal
knowledge, in particular, in the areas of medicinal plants and farmers’ seeds from
the south. This highlights, (and it refers to the earlier point regarding the US report),
that patenting is driven by a very small and succinct group of capitalists from within the
US. Agrochemical and pharmaceutical companies are whom we are talking about here, and they
are all good friends of one George Bush. Sorry, make that two. That the US Department of
Agriculture works closely with these transnational corporations, such as Monsanto, should
not then come as a surprise to anyone.
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